On Tuesday, France’s Minister of the Digital Economy, Fleur Pellerin, formally accepted the 67-page report (PDF) published earlier in the month by the National Digital Council (Google Translate), a government advisory body known by its French acronym, CNN.

Net neutrality is a particularly salient issue in the country, given the recent dust-up between Free (the country’s second-largest ISP) and Google.

However, digital rights advocates worry that what’s been proposed in France is “toothless,” as it doesn't include possible sanctions for companies that would violate the proposed net neutrality provisions. Others point out that the report seems to have carved out a massive loophole for so-called “illegal” content or material online.

Pellerin has said (Google Translate) that she will propose new legislation next year, but as the report itself notes over the course of 20 pages, there have been numerous false starts with respect to net neutrality in France in recent years. There's already a pending bill (Google Translate) in the French National Assembly, which was introduced late last year.

The new report seems to largely re-iterate what's been proposed in the past.

This collection [of ideas] is built around the founding principles of the Internet, one of which its most important concepts is that of “net neutrality,” which was developed to forbid discrimination by the sender, recipient, and irrespective of the content of the transmitted. Its purpose is to ensure the ability of users to access content, to transmit content, and to use the services of their choice, while avoiding [providers] that block or slow down or prioritize one service over another. Limiting the anti-competitive nature of these practices, the principle of neutrality is at the origin of the successes of the Internet and the development of a very rich ecosystem for creativity, which draws many startups [that are] constantly inventing new services.

The Dutch model

“The fact that the opinion is to only inscribe in the law a ‘principle’ without describing infractions and penalties and the place where it shall be written is what makes it toothless and probably makes the telcos not so worried,” said Jérémie Zimmerman, of La Quadrature du Net, a Paris-based activist group, in an instant message chat with Ars.

“Such a principle written in the law will leave everything to the judge, from defining what actually is discriminating, or an unfair network management practice to what the harm it causes is, to what link there is between discrimination and freedom of expression. This is a hard case to make and it would take ages, with all appeals and [adequate] jurisprudence.”

Zimmerman added that what his group wants is simple: merely a new law similar to what was adopted in the Netherlands.

“[We just want] something in the telecommunications act to say, 'restricting communications based on the sender, or receiver, or type of data is illegal, and if you do it, you’ll be sanctioned,'” he added. “Except for the security of the network and its users, or temporary and non-foreseeable congestion. That’s what we call effective protection of net neutrality.”

Dutch Internet advocates worry too that the French proposal doesn’t go far enough. Marietje Schaake, a Dutch social liberal member of the European Parliament told Ars that while she is “excited” by the prospect of net neutrality policy from other EU countries, she would prefer an EU-wide policy. “The proposals from France sound quite different from the ones we enshrined in law in The Netherlands,” she told Ars by e-mail.

“The French proposals mix several concepts. Some of the plans seem to want to curb certain strong players such as Google, and they also link net neutrality to free speech. I am in favor of as much free speech as possible, online and offline. But net neutrality is about non-discrimination in transmitting data. We have learned that the EU's preferred parameters to guarantee net neutrality—transparency and competition—do not provide for a strong enough safeguard. BEUC, the consumer rights organization in Europe, has researched and concluded that consumers do not have a real choice to shift telecom operators and Internet service providers. The French proposal speaks of 'anything that is legal,' the question is who ought to assess [it?] I believe [this question] should be [a judge, and not a] private company.”

In short, it’s not enough to let companies figure out how to implement these principles on their own.

“It is remarkable—not only do French politicians have no problem with privatizing regulation of freedom of expression, but [they] have no problem with this being privatized in the hands of foreign companies like Facebook, Microsoft, Google, et cetera.” quipped Joe McNamee, of European Digital Rights.

The thorny issue of “legality”

Indeed, even French Internet users have called into question a line on the second page of CNN’s report, which required service providers to guarantee access “to all that is legal.” The 67-page document does not get into specifics of what it means by “legal” or “illegal” material or content.

But as French tech news site Numéramapoints out (Google Translate), “[that] opens up the possibility of distinguishing within the same data stream what is legal and should remain neutral and what is illegal and can not be treated as neutral. Or simply to distinguish the legal from the illegal is a violation of neutrality. Or, that the simple fact of distinguishing between legal and illegal is an attack on neutrality.”

A Dutch IT lawyer, Arthur van der Wees, told Ars that such an approach can be “potentially very dangerous” as it could set up a mechanism for censorship, analogous to the controversial CleanIT Project.

“So, trying to pin down and define what ‘anything that is legal’ means (as per Page 2 of the report), will always be unsatisfactory for one or more parties or end users,” he wrote. “Trying to get to a binary split between good and wrong will not work, and in my view will lead to imbalance and may lead infringement of basic human rights. In short, this French initiative is to be closely monitored. So far in the Netherlands, the new law on net neutrality has—to the extent I know at this time—not lead to strange outcomes or abuse. But then again, it has only been implemented 2.5 months ago, so it is a bit too early to celebrate.”

12 Reader Comments

There are three OECD governments that already have a law on Net Neutrality. Chile was the first. The Netherlands was second, which went into force on January 1st, 2013 and Slovenia was third, as of January 15th, 2013. However, that is not all. Norway has a voluntary code, which was described here on Ars Technica. It was recently described and explained a new on the website of the regulator http://eng.npt.no/portal/page/portal/PG ... d_v=142817

Several countries have codes or some level of rules, including the USA and the UK.

Just make ISPs act as dumb pipes. They don't, normally, get to search or prioritize traffic to or from any source. Don't make, or let, them do anything more.

Now, if the government steps in with proper documentation (e.g. a warrant), that all goes out the window. But that's true pretty universally, so whatever. Add a note like "except as superceded by legal warrants" or whatever to cover the base.

That makes it clear who holds ultimate responsibility for what, and absolves the ISPs of most responsibility. They aren't allowed, normally, to see if you're doing something bad; if you are, and the ISPs aren't correctly notified to watch you, not their problem. If you are, and the ISP's are properly notified to watch you...it's not their problem, because the warrant overrides your complaint. The only way the ISP can get in trouble is pretty obvious: packet sniffing or similar without a proper warrant, or not obeying a proper warrant.

While I agree with you...but that would only exist in an ideal world. There are many stakeholders that's complicating all laws/regulations. Unfortunately, our government is not above all these special interests...actually no government is.

I am in favor of the net neutrality. But then I have some concerns about how to implement it. My main concern is about the money issue. Which according to me is not secondary because it has to do about how to implement net neutrality concretely. How does this proposal is tackling this issue? And What Ars experts think about it?

Let me detail my reasoning with an example. As far as I understood the conflict between Free (French ISP) stem from money issues. AFAIU. Free wanted Google to pay for the data stream provoked by Free users when requesting YouTube services. Which I believe impose big data load on Free infrastructure. Provided the current way the internet is working right now - network of mostly private network (?) - , it seems to me a valid concern from Free.

In France Free is a highly competitive ISP player player concerning prices, very aggressive with what they offer to their customers. I guess every French citizen could only agree with the fact that when Free introduced its ASDL offers a decade ago, prices stepped down in the ISP market ... for customers. As a consequence, as a customer who is trying to protect its interests, I would be more inclined in Google to participate... Of course what you don't pay here, you pay it there, one way or the other, I am not totally dull, Google would in the end charge its customer (advertisers) with higher fees which would impact firms advertising budgets, which in the end impact manufactured product prices :-). But I think that way of doing things would help with my/ours primary concern: which is the net neutrality and free speech rights. Doing so would lead to even lower prices from ISP, and as a consequence a lower barrier to entry for people to access the internet.

Soon after this issue we've learned that Orange managed to make a deal with Google in a very similar issue. It seems that Google was needing access to Orange network in Africa, and since Orange is bigger and well establish there according to the article, in French .Sorry I didn't find a translated version), they've managed to "incline" Google to their "will".

Just came to say that Paraguay has also a net neutrality provision in its legislation. And based on the dates mentioned in this article, we might well be the first country in the world to have done so (you didn't see that coming huh?). Quoting the national ISP and Data Transmission regulation, art. 26 (translation is mine):

"The Service Provider must abide by the Network Neutrality principle, by which it cannot interfere or degrade inbound or outbound traffic, or alter the agreed bandwidth, based on content type, application, source or destination decided by the user"

Just came to say that Paraguay has also a net neutrality provision in its legislation. And based on the dates mentioned in this article, we might well be the first country in the world to have done so (you didn't see that coming huh?). Quoting the national ISP and Data Transmission regulation, art. 26 (translation is mine):

"The Service Provider must abide by the Network Neutrality principle, by which it cannot interfere or degrade inbound or outbound traffic, or alter the agreed bandwidth, based on content type, application, source or destination decided by the user"

Thank you for your contribution. It is very much appreciated. I didn't know about Paraguay. I have looked through the document you attach and it is a very important document as it is quite an early one. However on a legal level, Chile is still first as it was the first one to implement it in a law (ley). Paraguay chose an executive order of the regulator. (Resolucion Directorio) Though a executive order of this kind can have strong powers, legally it is less important and easier overturned then a law. The Spanish language Wikipedia page, also mentions Ecuador as having net neutrality rules. In this case too it is a resolucion and not a ley.

In the first place, the idea that all packets are equal is nonsense. There is no rational calculation under which a pirate movie Torrent or a Windows update should have the same priority as a 911 call or even a plain old VoIP session. NN on the mobile network would make dropped calls the norm.

In the second place, the French law is NN on steroids because it applies to "platforms" as well as to ISPs. When you subject Facebook and Linkedin to an "all packets are equal" law you've seriously lost the plot, but that's what the esteemed froggies want to do.

[that] opens up the possibility of distinguishing within the same data stream what is legal and should remain neutral and what is illegal and can not be treated as neutral. Or simply to distinguish the legal from the illegal is a violation of neutrality. Or, that the simple fact of distinguishing between legal and illegal is an attack on neutrality.

I think that the quoted text has a repeated final sentence; reading the linked source text didn't have both sentences starting with "Or...".

Also, "or" in French means "however" e.g. "However simply to distinguish the legal from the illegal is a violation of neutrality." That might make the logic of the quote a bit clearer.